AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 2 May 2016

R v Da Silva

[2016] NSWSC 563

HomicideDomestic & family violence
EVIDENCE TENDENCY EVIDENCE MURDER DEATH OF DOMESTIC PARTNER OF ACCUSED CIRCUMSTANTIAL CASE WHETHER SIGNIFICANT PROBATIVE VALUE

Citation: R v Da Silva [2016] NSWSC 563
Court: Supreme Court of New South Wales
Date: 2 May 2016
Judge: Harrison J

Background

The accused was charged with the murder of his former domestic partner, who was found dead in her bed in May 2010 with fatal blunt force injuries to her head and face. The couple had been in a relationship since late 2006 and had separated permanently in February 2010. The Crown's case was that the accused became increasingly agitated following the end of the relationship and killed the deceased in circumstances connected to that reaction.

The case against the accused was circumstantial. In advance of trial, the Crown gave notice under s 97(1) of the Evidence Act 1995 of its intention to adduce tendency evidence. The tendency the Crown sought to establish was that the accused had a pattern of being emotionally manipulative and physically violent toward women with whom he had been in a domestic relationship, and that he had a possessive and obsessive state of mind toward such women.

The proposed tendency evidence came from two former domestic partners and a witness who had observed the accused's conduct. It described a pattern of physical violence, choking, possessiveness, and controlling behaviour spanning several decades and multiple relationships.

  • Whether the proposed tendency evidence had "significant probative value" as required by s 97(1)(b) of the Evidence Act 1995
  • Whether the probative value of the evidence substantially outweighed its prejudicial effect on the accused, as required by s 101(2) of the Evidence Act 1995
  • Whether the proposed tendency evidence was sufficiently connected to the circumstances of the charged offence to satisfy the statutory threshold

Decision

Harrison J found that the tendency evidence met the threshold of significant probative value under s 97(1)(b). The Crown's case was circumstantial, and evidence establishing that the accused had a documented tendency toward violence and obsessive control in domestic relationships was directly relevant to the issue of whether he killed his former partner following the breakdown of their relationship. The judge reasoned that the tendency evidence went to both conduct and state of mind, and that those matters were squarely in issue.

On the question of prejudicial effect under s 101(2), the court acknowledged that tendency evidence will virtually always carry some degree of prejudice to an accused. However, Harrison J distinguished between prejudice arising from the sheer fact that the evidence was being led and prejudice arising from the risk that the evidence was unreliable, inaccurate, or incomplete. The court found no basis to conclude that the evidence fell into the latter category.

The court held that there could be no reasonable or acceptable excuse for domestic violence, and that the prejudice flowing from this evidence was a product of its content rather than any inherent unreliability. Accordingly, the prejudicial effect was assessed as relevantly low or non-existent. The probative value substantially outweighed that effect, and the Crown was permitted to adduce the evidence.

Orders Made

  • The Crown was permitted to adduce the tendency evidence identified in its tendency notice dated 2 July 2015.

Key Takeaways

  • Under s 97(1)(b) of the Evidence Act 1995, tendency evidence must have "significant probative value." In a circumstantial murder case, evidence of a long-standing pattern of violence and possessive behaviour in prior domestic relationships can satisfy that threshold where those features are directly relevant to the alleged motive and state of mind.

  • The Supreme Court drew a meaningful distinction between two types of prejudice: prejudice arising simply from the fact of the evidence being led, and prejudice arising from the risk that the evidence is unreliable or incomplete. Only the latter type carries meaningful weight in the s 101(2) balancing exercise.

  • Where evidence of domestic violence is sourced from multiple former partners and corroborated by independent witnesses, the court is unlikely to characterise it as the kind of prejudicial material whose reception creates unfair disadvantage beyond the inherent impact of its content.

  • The s 101(2) balancing exercise is fact-specific and must be conducted with reference to the particular evidence proposed and the circumstances of the case at hand.

  • Tendency evidence of the kind contemplated by s 97 will rarely, if ever, be favourable to an accused; Harrison J noted that putative prejudice arising merely from leading such evidence must therefore be discounted in the statutory analysis.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 97, 101

Cases
- Aravena v R [2015] NSWCCA 288